FPSLREB Decisions

Individual grievances referred to adjudication

1 On February 20, 2007, Keith Payne and Tracy Ohl (“the grievors”) filed individual grievances against the decision of the Correctional Service of Canada (“the respondent”) to impose a 10-day suspension on them. The respondent denied the grievances at the final level of the grievance procedure on September 5, 2007. The grievances were referred to adjudication on September 18, 2007. The applicable collective agreement is between the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN and the Treasury Board for the Correctional Services group; expiry date: May 31, 2010 (“the collective agreement”).

2 The respondent advised the Registry of the Public Service Labour Relations Board (“the Board”) on November 2, 2007 that it objected to the adjudicator’s jurisdiction to hear the grievances on the basis that they were submitted to the final level in an untimely fashion and that, accordingly, they were rejected at the final level. The grievors responded to the respondent’s objection on November 20, 2007. The respondent submitted its rebuttal on December 7, 2007. On December 14, 2007, the Board wrote to the parties advising them that the question of jurisdiction should be brought to the attention of the adjudicator at the start of the hearing.

3 In January 2010, I was informed that the Board’s Registry had scheduled a hearing for the grievances from May 25 to 28, 2010, and that I was the adjudicator assigned to hear them. In reviewing the objection submitted by the respondent and the response from the grievors, I decided that it would be more efficient to deal with the respondent’s objection through written submissions by the parties rather than to wait for the oral hearing. On January 12, 2010, the parties were advised accordingly.

4 The purpose of this decision is to deal with the respondent’s objection and to decide if I have jurisdiction to hear these grievances.

Summary of the submissions on the objection

5 In its September 5, 2007 decision, the respondent rejected both grievances at the final level of the grievance procedure. Both responses are identical. The following abstract of those responses is of significance in dealing with the respondent’s objection:

The following is in response to your grievance concerning the ten (10) days [sic] suspension that was imposed on February 6th, 2007.

On a preliminary matter, your transmittal to [sic] final level is untimely in accordance with clause 20.12 of the CX collective agreement and is therefore deemed to have been abandoned pursuant to clause 20.21 of the CX collective agreement. However, I will address your grievance on the merits.

…

You continue to deny any accountability for your actions and fail to acknowledge the seriousness of the misconduct. In light of this, I see no alternative but to deny your grievance.

6 In their two submissions to the Board, the grievors did not contradict the respondent’s statement that the transmittal of their grievances to the final level of the grievance procedure was untimely. In fact, the parties agreed on the dates on which the employer responses were received by the grievors, and the date of the transmittal to the final level of grievance procedure. Rather, the grievors argued that, while the respondent noted the timeliness issue at the final level, it did not reject the grievances for that reason and instead had chosen to address the grievances based on its evaluation of the merits. The respondent rebutted the grievor’s submission and argued that the grievances were in fact denied based on the preliminary matter, and that, in addition to rejecting the grievances on the basis of timeliness, the delegated manager reviewed the merits and denied the requested corrective action.

7 According to the grievors, the respondent cannot argue at adjudication that it rejected or denied the grievances based on timeliness since it chose to address the merits of the grievances at the final level. In the last paragraph of its final level reply, the employer rejected the grievances, not on timeliness, but on merits. Since the grievances were not rejected on the basis of timeliness at the third level of the grievance procedure, they cannot be rejected at adjudication on that basis. On that point, the grievors referred me to section 63 of the Public Service Labour Relations Board Regulations, SOR/2005-79 (“the Regulations”).

8 The respondent acknowledged that it had addressed the merits of the grievances in its final-level reply despite the grievors’ failure to respect timeliness. However, the respondent argued that the grievances were denied on the preliminary matter. According to the respondent, its responses on the merits of the grievances simply reflected the importance that it placed on its responsibility to fully address conflicts and issues arising in the workplace.

Reasons

9 According to clause 20.11 of the collective agreement, an employee who is not satisfied with the response to a grievance may submit his or her grievance to the next level of the grievance procedure within 10 days after receiving the decision from the employer. According to clause 20.21, a grievance is deemed to have been abandoned if it is not submitted within the time limits unless the employee could not comply with those time limits. The relevant clauses of the collective agreement read as follows:

…

20.11 The Employer shall normally reply to an employee's grievance, at any level in the grievance procedure, except the final level, within ten (10) days after the date the grievance is presented at that level. Where such decision or settlement is not satisfactory to the employee, he or she may submit a grievance at the next higher level in the grievance procedure within ten (10) days after that decision or settlement has been conveyed to him or her in writing.

…

20.16 In determining the time within which any action is to be taken as prescribed in this procedure, Saturdays, Sundays and designated paid holidays shall be excluded.

…

20.21 An employee who fails to present a grievance to the next higher level within the prescribed time limits shall be deemed to have abandoned the grievance, unless the employee was unable to comply with the prescribed time limits due to circumstances beyond his or her control.

…

10 The submissions of both parties indicate that the grievors did not submit their grievances to the final level of the grievance procedure within the time limit prescribed in clause 20.11 of the collective agreement. Also, the grievors did not argue that the transmittal to the final level was late because the grievors were unable to comply with the prescribed time limits due to circumstances beyond their control. Considering those facts and the wording of clause 20.21, it is clear to me that the grievances were deemed by the employer to have been abandoned following the late submission to the final level of the grievance procedure.

11 Section 225 of the Public Service Labour Relations Act (“the Act”) S.C. 2003, c.22, s.2, states that an adjudicator may not render a decision on a grievance if the grievance has not been presented at all required levels in accordance with the grievance procedure. Section 225 reads as follows:

225. No grievance may be referred to adjudication, and no adjudicator may hear or render a decision on a grievance, until the grievance has been presented at all required levels in accordance with the applicable grievance process.

12 The applicable grievance procedure referred to in section 225 of the Act is the grievance procedure specified in the collective agreement, and in this instance, the time limits are prescribed in clause 20.11. The grievors did not respect those prescribed time limits. In doing so, they did not present their grievances in accordance with the applicable grievance procedure. Consequently, section 225 of the Act prevents me from hearing and rendering a decision on the grievances.

13 I would add that, even without arguments by the parties, the failure to respect the time limits of the grievance procedure cannot be considered as a defect in form or a technical irregularity as per subsection 241(1) of the Act. On that note, subsection 241(2) is unequivocal as follows:

241. (2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).

14 The grievors argued that, since the grievances were not rejected on the basis of timeliness, they cannot be rejected at adjudication on that basis. On that point, the grievors referred me to section 63 of the Regulations, which reads as follows:

63. A grievance may be rejected for the reason that the time limit prescribed in this Part for the presentation of the grievance at a lower level has not been met, only if the grievance was rejected at the lower level for that reason.

15 In this case, the timeliness issue occurred when the grievors were late in submitting their grievances to the third and final level of the grievance procedure. The respondent, at the very outset of its responses reproduced at paragraph 5 of this decision, clearly stated that the submissions were late and that the grievances were deemed to have been abandoned. Even though the respondent wrote that the grievances were denied only at the end of its replies and after addressing their merits, that does not mean that it failed to reject the grievances on the basis of timeliness. As stated above, the respondent first concluded that the grievances were deemed to have been abandoned. Then, it wrote the following: “However, I will address your grievance on the merits.” At the end of its replies, the respondent also denied the grievances on their merits.

16 Maybe it would have been clearer had the respondent not addressed the grievances on their merits and had it simply written that the grievances were denied on the basis of timeliness. It would also have been clearer had the respondent been more explicit and stated that the grievances were denied on the basis of timeliness before providing an explanation on the merits. However, even though the respondent’s final-level response might lead to minor confusion, it is clear enough for me to conclude that the respondent satisfied its obligation under section 63 of the Regulations and that it rejected the grievances not only on their merits but also on the basis of timeliness. Consequently, I do not have jurisdiction to hear and render decisions on these grievances.

17 For all of the above reasons, I make the following order:

Order

18 I accept the objection raised by the respondent.

19 The grievances are denied.

February 25, 2010.

Renaud Paquet,
adjudicator